SURENDRA NATH SARKAR Vs. MD. JALIL SHAIKH

JUDGEMENT

(1.) This appeal by leave by the plaintiff appellants is from the judgment and order dated 20.7.93 passed by a learned Single Judge of the High Court Division in Civil Revision No. 2199 of 1993 making the rule absolute.

(2.) The relevant facts are that the plaintiff appellants got a contested decree of permanent injunction on 30.8.90 in Title Suit No. 380 of 1987, renumbered as Title suit No. 424 of 1984 of the Court of the Assistant Judge, the then Baliakandi Upazila, Rajbari, against defendant Nos. 1-4 respondents restraining them from giving on lease the suit land to any body and disturbing the plaintiffs' possession therein and also of a declaration that the proceeding taken in V.P. Case No. XII-1877 72-73 is illegal, void and not binding upon the plaintiffs and that the plaintiffs shall get khas possession in "kha" schedule property evicting defendant No. 4 (ka) there from. The aggrieved defendant respondent Nos. 1-4 then preferred Title Appeal No. 91 of 1990 in the Court of District Judge, Rajbari against the said decree. The appeal was dismissed for default on 20.11.91. Those defendants filed an application under order XLI Rule 19 of the Code of Civil Procedure, Misc. Case No. 1 of 1992, for re-admission of the appeal. The learned District Judge by an order dated 24.5.92 dismissed the said Misc. Case holding, inter alia, that the case was barred by 19 days and that the defendant appellants could not explain the delay, specially for the period from 1.1.92 to 8.1.92, and that they also failed to show sufficient cause preventing them from appearing in the appeal when it was called on for hearing. Being aggrieved defendant No. 4(ka) - petitioner respondent No. 1 moved the High Court Division in revision, and obtained a Rule in Civil Revision No. 2199 of 1992, (although an appeal should have been preferred against such order under order XLIII Rule I of CPC. A learned Single Judge of the High Court Division by the impugned judgment and order made the Rule absolute and after setting aside the impugned judgment and order passed by the learned District Judge allowed the application filed by the defendant respondents under order XLI Rule 19 C.P.C, holding inter alia, that the learned District Judge did not take into consideration the material evidence that during the period from 18.11.91 to 6.12.91 the appellant, Abdul Jalil, who used to make tadbir for self and on behalf of the other appellants in the appeal, had been suffering from typhoid and as such he failed to take necessary steps in the matter and that on 1.1.92 he came to know about the order of dismissal of the appeal from the Mohurar of the learned Advocate and that thereafter the case was filed. The learned judge held that non consideration of those important piece of evidence materially affected the merit of the case and occasioned a failure of justice.

(3.) Leave was granted to consider whether the learned Judge of the High Court Division set aside the order of the learned District Judge without fully comprehending the reasons given by him (District Judge) for rejecting the application of the defendant appellants.